Citation Nr: 21015732 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 16-61 567 DATE: March 18, 2021 ORDER Effective September 1, 2015, restoration of a 20 percent rating for left knee degenerative joint disease (left knee disability) is granted. REMANDED Entitlement to a rating33e in excess of 20 percent for a left knee disability is remanded. FINDINGS OF FACT 1. The Veteran’s 20 percent rating for a left knee disability had been in effect for less than five years at the time it was reduced. 2. The evidence of record at the time the Veteran’s left knee disability rating was reduced from 20 to 10 percent did not demonstrate improvement in his ability to function under the ordinary circumstances of life and work. CONCLUSION OF LAW The criteria for restoration of a 20 percent rating for a left knee disability effective September 1, 2015, are met. 38 U.S.C. §§ 1155, 5107, 5112; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5260. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1983 to January 1986. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. In January 2021, the Veteran submitted additional evidence directly to the Board and waived initial consideration of this evidence by the RO. See January 2021 Waiver of Consideration of Evidence by Regional Office; January 2021 Hearing transcript (Tr.) at 2; 38 C.F.R. § 20.1305(c). 1. Effective September 1, 2015, restoration of a 20 percent rating for a left knee disability is granted. The Veteran asserts that the reduction of the rating for his left knee disability from 20 percent to 10 percent was improper, as his left knee disability had not improved. See December 2014 Statement in Support of Claim. The Board agrees. Congress has provided that a veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. The United States Court of Appeals for Veterans Claims (Court) has consistently held that when a RO reduces a veteran’s disability rating without following the applicable regulations, the reduction is void ab initio (invalid from the beginning). See, e.g., Greyzck v. West, 12 Vet. App. 288 (1999). Where a disability rating has been in effect less than five years, as in this case, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344(c). In making this determination, VA is required to comply with several regulations applicable to all rating reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 413 (1993). These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of a veteran’s disability. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case not only must it be determined that an improvement in a disability has actually occurred, but also that the observed improvement actually reflects an improvement in a veteran’s ability to function under the ordinary conditions of life and work. See Faust v. West, 13 Vet. App. 342 (2000). Generally, when reduction in the evaluation of a service-connected disability is contemplated and the lower evaluation would result in a reduction or discontinuance of compensation payments, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary must be notified at his or her latest address of record of the contemplated action and furnished detailed reasons for the proposed reduction. The beneficiary must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level as well as 30 days to request a predetermination hearing. See 38 C.F.R. § 3.105(e). Here, the Veteran was informed of the proposed reduction in a November 2014 rating decision. He was afforded 60 days to respond and informed of his right to elect a predetermination hearing, which he did not request. Thereafter, the RO promulgated a rating decision in June 2015, implementing the proposed reduction, effective September 1, 2015. Based on this history, the Board finds that the Veteran was properly notified of the proposed rating reduction, in conformity with the provisions of 38 C.F.R. § 3.105(e), and will now turn to the merits of the reduction. In general, when there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 4.3. However, there is a different burden of proof with respect to rating reduction claims. Because the issue in this case is whether the RO was justified in reducing the Veteran’s 20 percent rating, rather than whether the Veteran was entitled to “reinstatement” of the 20 percent rating, the Board is required to establish, by a preponderance of evidence and in compliance with 38 C.F.R. § 3.344(a), that a rating reduction was warranted. See Brown, 5 Vet. App. at 421; see also Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In considering the propriety of a reduction, the Board must focus on the evidence of record available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered for the limited purpose of determining whether the condition had demonstrated actual improvement. Dofflemyer, 2 Vet. App. 277. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran’s left knee disability is rated under DC 5260, which provides a 30 percent rating for flexion limited to 15 degrees, 20 percent rating for flexion limited to 30 degrees, 10 percent rating for flexion limited to 45 degrees, and a noncompensable rating for flexion limited to 60 degrees. See 38 C.F.R. § 4.71a, DC 5260. Here, the rating reduction was based on the results of the November 2014 C&P examination; however, the evidence of record at the time of the reduction does not demonstrate improvement in the Veteran’s left knee disability or improvement in his ability to function under the ordinary conditions of life and work. Notably, an April 2012 letter written by the Veteran’s employer indicated his ability to perform normal occupational tasks was substantially restricted by his knee disability. An October 2012 VA medical letter states the Veteran requires use of a cane to walk and bilateral knee braces and uses narcotic pain medication to control pain. A November 2012 C&P examination indicates the Veteran complained of worsening of the condition, constant soreness and pain, swelling, and difficulty walking, climbing stairs, standing, and sitting. A December 2014 VA orthopedic surgery note indicates bilateral knee osteoarthritis with increased pain resulting in increased instability, and a recommendation for total knee replacement. In a December 2014 Statement in Support of Claim, the Veteran asserts that his left knee disability had worsened, rather than improved. In addition, the November 2014 VA examination, on which the rating reduction is based, indicates the Veteran complained of pain, stiffness, and weakness upon flare-ups that limited his walking ability and lasted 1-2 days and occurred every few days. The examiner noted that pain and incoordination further limited the Veteran’s functional ability, but did not express that limitation in terms of range of motion measurements. The examiner also noted that he could not conduct stability tests due to the Veteran’s pain upon testing. The examiner further indicates that the Veteran used a brace and cane for assistance due to his knee condition, could only lift 5-15 pounds, could only walk about 1 block at one time, could only walk 1 to 1.5 hours in an 8-hour period, could only sit or stand for 10-15 minutes with help of a cane, and could only sit or stand for 2-3 hours in an 8-hour period, but would need to change position every 15-30 minutes. Moreover, the examiner stated that the Veteran’s diagnosis is a progression “due to further deterioration.” The Board finds that the Veteran’s left knee disability had not improved to warrant a rating reduction. In this regard, the Board observes that the reduction was made without consideration of the Veteran’s ability to function under ordinary conditions of life and work. The evidence discussed above demonstrates that at the time of the reduction, the Veteran’s left knee disability was productive of pain and limited mobility that severely impacted his ability to perform activities of daily living. Significantly, the November 2014 VA examination, on which the RO relied to reduce the Veteran’s rating, indicated that the Veteran’s disability had progressed and exhibited further deterioration. Thus, the Board finds that the record does not include persuasive evidence that the Veteran experienced a material improvement in his left knee disability such that his ability to function under the ordinary conditions of life and work has improved, and therefore a 20 percent rating for the Veteran’s left knee disability is restored, effective September 1, 2015. REASONS FOR REMAND 2. Entitlement to a rating in excess of 20 percent for a left knee disability is remanded. The Veteran asserts that his left knee disability has progressively worsened and warrants an increased evaluation. See Tr. 2-20; January 2021 Statement in Support of Claim; December 2014 Statement in Support of Claim. The Veteran also asserts that the November 2014 examiner spent less than 10 minutes on the examination and did not take any measurements. See Tr. at 2-3. The Veteran has not been examined since an October 2015 Disability Benefits Questionnaire (DBQ) and the Veteran has reported progressive worsening of his condition since that time. See Tr. 2-20; January 2021 Statement in Support of Claim; April 2019 VA orthopedic surgery note (indicating the Veteran’s condition will not improve over time and will only progressively worsen). Additionally, three examinations conducted before October 2015 failed to provide estimates of additional range of motion loss due to pain, weakness, fatigability, or incoordination. See November 2014, November 2012, and April 2012 examinations. Moreover, the Veteran credibly reported that the November 2014 examiner spent an inadequate length of time on the examination and did not take any measurements. See Tr. 2-3. Thus, remand is necessary to obtain an updated VA examination to assess the current nature and severity of the Veteran’s left knee disability, and to obtain a retrospective opinion regarding estimates of additional functional loss on prior examinations. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Then schedule the Veteran for a knee examination by an examiner other than the one who performed the November 2014 examination to determine the nature and severity of his service-connected left knee disability. The entire claims file should be made available to the examiner. The examiner should conduct all indicated tests and studies, to include range of motion studies. For the range of motion study, each of the joints involved should be tested for pain (1) on active motion, (2) on passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Considering the Veteran’s reported history in the April 2012, November 2012, and November 2014 examinations, as well as on current examination, please also provide an opinion describing functional impairment of the Veteran’s left knee, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined and the reason why those facts cannot be determined if unable to opine without resort to mere speculation (e.g., lack of insufficient information or evidence, the limits of medical knowledge, etc.). The examiner’s attention is invited to the following evidence, which they are asked to consider and discuss in the examination report: a. October 2012 VA correspondence by Dr. N.P. indicating the Veteran needs a cane to walk, uses knees braces bilaterally, and takes narcotic pain medication to control pain. b. November 2012 radiology report of the left knee indicating degenerative change with moderate osteophytosis, mild medial compartment narrowing, and no erosive arthropathy, fracture, or malalignment c. December 2014 Statement in Support of Claim indicating the Veteran’s reports of worsening of his left knee disability. d. December 2014 progress note by Dr. P.S. noting left knee pain and bilateral osteoarthritis. e. October 2015 DBQ conducted by Dr. B.H. noting the left knee was painful, stiff, and swollen. Veteran is taking 600 milligrams of ibuprofen. He has flareups and functional impairment which limits walking. He cannot run. Difficulty getting up from a seated position and cannot bend, squat, kneel on his knees. f. March 2016 progress note from Dr. P.S. noting injections for bilateral knees. g. October 2016 progress note by Dr. D.H. noting osteoarthritis bilateral knees and last injection was July 14, 2016. h. January 2017 progress note by Dr. P.S. noting severe bilateral knee osteoarthritis, altered gait, using a cane, and received cortisone injections. i. May 2017 progress note by Dr. D.H. noting osteoarthritis bilateral knees, range of motion was slow and deliberate, and the Veteran received another cortisone injection. j. December 2017 progress note by Dr. S.T. noting osteoarthritis bilateral knees and last injection September 14, 2017. k. April 2019 progress note by Dr. P.S. noting the Veteran has severe bilateral knee osteoarthritis, and stating “It is a progressive disease and will not improve over time. He reports that he was told by an outside provider assessing his disability that his cartilage has grown back, so some of his disability was then reduced. Cartilage does not grow back. Osteoarthritis does not improve over time, only progressively worsens.” i. October 2019 progress note by Dr. S.T. noting bilateral osteoarthritis and cortisone injections. j. January 2020 progress note stating the Veteran has had known osteoarthritis for many years, x-ray in 2017 showed left knee as moderately severe, and “I suspect the left knee has become severe as well.” k. February 2020 progress note stating swelling in the knees, range of motion limited in left medial rotation, uses a cane to walk, and flexed gait. l. October 2020 progress note stating severe osteoarthritis and cortisone shots only provide relief for a few weeks. m. Dr. P. in VA Sunnybrook clinic recommended left knee replacement. See Hearing transcript at 14. n. Veteran’s testimony that on a scale of 1 to 10, on average days his pain is 8 or 9, and he also has flareups during cold and rainy weather. See January 2020 Hearing transcript at 6. He takes medication for knee pain several times every day. See id. at 6-7. He obtained benefit from using knee braces. See id. at 8. Every day he is worried about his knee giving out. See id. at 8-9. He walks assisted by a cane every day. See id. at 9. He has difficulty walking up stairs. See id. at 10. He cannot squat or bend at all. See id. at 10-11. He spends most of his time sitting because he has pain all the time. See id. at 11-12. He cannot stand on just his left knee for any amount of time. See id. at 11-12. He has to elevate his leg sometimes to alleviate the pain and the shots do not stop all the pain. See id. at 12. Relief from the shots last about one month. See id. at 12-13. He cannot sit in the front seat of a car. See id. at 13-14. o. Veteran’s January 2021 Statement in Support of Claim. The examiner is asked to ensure the examination report reflects the recent regulatory amendments affecting the rating of knee disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.